330 Mass. 165 | Mass. | 1953
On May 8, 1951, Antone F. Silva, of Manchester in the county of Essex, filed in the Probate Court a petition under G. L. (Ter. Ed.) c. 209, § 36, against his wife Ethyl M. Silva, praying for a decree that she had deserted him and that he was living apart from her for justifiable cause. On October 4, 1951, the court entered such a decree in his favor, and on October 17 Ethyl M. Silva filed in the Probate Court her claim of appeal. On October 19 she gave to the register of probate her order in writing for the preparation of the appeal papers in accordance with G. L. (Ter. Ed.) c. 231, § 135, as amended. On October 29 the register notified her attorney in writing of the estimated expense, but no money was ever paid. Meanwhile on October 11, Antone executed a will in which he bequeathed $1 to his wife', $1 to a sister, and the remainder to Philomena E. Jordan, the present petitioner, whom he named as executrix. On February 1, 1952, Antone died. On February 6 Philomena E. Jordan filed a petition for probate of the will. On February 29 Ethyl M. Silva entered an appearance by her attorney “In the Matter of Probate of Will,” and on March 4 filed a waiver of the will, under G. L. (Ter. Ed.) c. 191, § 15, and claimed such portion of Antone’s estate as she would have taken if he
The only questions argued on either side are those referred to in the motion, growing out of the petition of Antone F. Silva and the decree thereon. So far as appears no contention has been made at any time that Antone’s will was invalid for lack of testamentary capacity or for any reason apart from the question of waiver by Ethyl M. Silva. As the result will be the same, we consider the case upon the issues argued.
We are of opinion that the denial of the motion was not error.
As appears above, the state of affairs at the death of Antone F. Silva on February 1, 1952, was that a final decree had been entered in the Probate Court under G. L. (Ter. Ed.) c. 209, § 36, to the effect that Ethyl M. Silva had deserted Antone F. Silva, and that he was living apart from her for justifiable cause. She had claimed an appeal from that decree but, as conceded in the case now before us, had failed to perfect her appeal by making the necessary payment. General Laws (Ter. Ed.) c. 215, § 22, provides in part that “After an appeal has been claimed and filed in the registry of probate, all proceedings in pursuance of the act appealed from shall, except as otherwise expressly provided, be stayed until the determination thereof by the supreme judicial court; but if, upon such appeal, such act is affirmed, it shall thereafter be of full force and validity.” Under this statute, there being no applicable express pro-
An ordinarily sufficient means of removing the stalemate resulting from the filing of a notice of appeal and the failure to take the necessary steps to perfect the appeal is found in the last sentence of G. L. (Ter. Ed.) c. 215, § 29, which reads in part as follows: “. . . or if he [the appellant] fails to cause the necessary copies to be prepared or otherwise fails to perfect his appeal, the probate court from
In the present instance, however, the death of Antone F. Silva brought about an abatement of the entire proceeding previously instituted by him, since the absence of any “effectual decree” at the time of his death left the parties to that proceeding “as if no suit had been brought.” Rice v. Rice, 184 Mass. 488, 490. See Brigham, petitioner, 176 Mass. 223, 226; Diggs v. Diggs, 291 Mass. 399; Pine v. Pine, 323 Mass. 524.
The case of Fenelon v. Fenelon, 244 Mass. 14, presented a situation very different from that now before us. The cause between husband and wife had been appealed to this court, crystallized into an appeal record, and fully argued here before the petitioner died. All that remained was to write and agree to an opinion and send a rescript. In those circumstances this court affirmed the decree nunc pro tune as of a date before the petitioner’s death. In the present case all that is before us is the matter of the denial of a motion in a petition for proof and allowance of a will. The original cause between husband and wife never reached this court. It is impossible here to take the course taken in Fenelon v. Fenelon.
Nothing here said is inconsistent with the recent decision in De Marzo v. Vena, ante, 118. The answer in that case purported to set up a decree which had not been stayed and which was effectual at the death of the wife.
Decree denying the motion to strike out the appearance for Ethyl M. Silva affirmed.
The motion seems to be in error in giving the date of the decree as October 8, but the difference in dates is unimportant.
“Section 23. An appeal from a final or interlocutory order or decree in equity of a probate court made in the exercise of any jurisdiction in equity' shall not suspend or stay proceedings under such order or decree pending the appeal. But the probate court or a justice of the supreme judicial court, in case of such appeal, may stay all proceedings under such order or decree and make necessary or proper orders to protect the rights of persons interested pending the appeal; and any such order of the probate court for a stay of proceedings or for protection of any such rights may be varied or discharged by a justice of the supreme judicial court upon motion, and shall not be otherwise subject to an appeal.”